The court established that evidence of aggravated sexual assault on a minor under POCSO Act justified conviction, emphasizing the presumption of guilt unless rebutted, while excluding IPC Section 504 due to inability to prove intent.

JUDGMENT :

RAJENDRA BADAMIKAR, J.

The appellant/accused has filed this appeal under Section 374(2) of Cr.P.C. challenging the judgment of conviction and order of sentence passed by the learned II Additional Sessions Judge, Kalaburagi in Special Case (POCSO) No.18/2015 dated 22.09.2018.

2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.

3. Brief factual matrix leading to the case are as under:

That on 04.04.2015 around 9.30 a.m. the victim aged about 10 to 11 years was proceeding to get a coconut. It is alleged that the accused enticed the victim under the guise of giving chocolates and later on took her on his shoulder to a deserted and dilapidated teachers’ quarters, put her on the ground, abused her in vulgar language as threatened her, held her mouth, bite her chin, fell on her and tried to remove her under garments. When the child cried, the complainant i.e., the father of the victim and CW.11 who were in search of the child after hearing the cry rushed to the spot and on seeing them, the accused fled from the spot. Then the victim narrated the incident to her father and she was taken to the police station, wherein, a complaint came to be lodged. On the basis of the complaint, the crime was registered and the Investigating Officer has drawn spot mahazar and seized a cap of accused and also his chappals from the spot as per the spot shown by the victim and then she was sent for medical examination. Later on he recorded the statement of witnesses and also obtained a document to show that the victim belongs to Scheduled Caste community and then they found that there is material evidence available against the accused. Hence, he has submitted the charge sheet against the accused for the offences punishable under Sections 376 and 504 of the INDIAN PENAL CODE , 1860 (for short ‘IPC’), under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘SC/ST (POA) Act’) and under Section 10 of the Prevention of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’).

4. After submission of the charge sheet, as there are sufficient grounds to proceed against the accused, the learned Special Judge has taken cognizance of the said offences. The accused was arrested and was produced before the Court and subsequently, he was enlarged on bail. The accused was represented by the counsel, the prosecution papers were furnished to the accused as contemplated under Section 207 of Cr.P.C.

5. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Special Judge has farmed charges against the accused for the offences under Section 504 of IPC, Section 10 of the POCSO Act and Section 3(1)(xi) of the SC/ST (POA) Act. The accused pleaded not guilty and claimed to be tried.

6. To bring the guilt of the accused, the prosecution has examined in all 18 witnesses and also placed reliance on 18 documents marked as Exs.P1 to P18 and five material objects marked as MOs.1 to 5. After completion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused was of total denial.

7. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Special Judge has convicted the accused for the offence punishable under Section 10 of POCSO Act, under Section 504 of IPC and under Section 3(1)(xi) (old) and 3(1)(w)(i) (new) of the SC/ST (POA) Act and sentenced him by passing the following order:

“Acting under Section 235(2) of Cr.P.C., the accused is sentenced to under go for simple imprisonment for a period of 2 years and a fine of Rs.25,000/- for the offences punishable under Section 504 of INDIAN PENAL CODE and in default to pay fine, he shall under go further simple impris